Citation Nr: 0932789
Decision Date: 09/01/09 Archive Date: 09/14/09
DOCKET NO. 06-33 475 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased initial evaluation for
lumbosacral paravertebral myositis (back disability), rated
10 percent disabling from May 1, 2004, and 20 percent
disabling from October 29, 2008.
ATTORNEY FOR THE BOARD
R. Morales, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 2002 to October
2002 and from January 2003 to April 2004.
This appeal comes before the Board of Veterans' Appeals
(Board) from a June 2004 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in San Juan,
Commonwealth of Puerto Rico, which granted service connection
and assigned a 10 percent evaluation. A rating decision of
January 2009 increased the Veteran's rating to 20 percent
disabling, effective May 2006. This appeal is now under the
jurisdiction of the RO in St. Petersburg, Florida.
The Board notes that a June 2009 letter advising the Veteran
that his appeal was being returned to the Board was returned
to VA as forwarding time had expires. A decision can still
be made on this claim, as the letter did not contain any
information essential to the fairness of this adjudication.
The return to sender sticker on the file does list a new
address. The RO should take appropriate action in updating
the Veteran's address.
FINDINGS OF FACT
1. Prior to October 29, 2008, the Veteran's back disability
was manifested by, at worst, forward flexion to 40 degrees
with pain, extension to 15 degrees, left and right lateral
flexion to 15 degrees with pain, left and right lateral
rotation to 15 degrees with pain, as well as muscle spasm,
guarding, and tenderness without gait abnormalities.
2. After October 29, 2008, the Veteran's back disability was
manifested by forward flexion to 15 degrees with pain, but
with no evidence of ankylosis.
CONCLUSION OF LAW
1. The criteria for an evaluation in excess of 10 percent
for the Veteran's lumbosacral paravertebral myositis were not
met prior to October 29, 2008. 38 U.S.C.A. §§ 1155, 5102,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.55, 4.59, 4.71a,
Diagnostic Codes 5003, 5010, 5235-5243 (2008).
2. The criteria for an evaluation of 40 percent, but no
higher, for the Veteran's lumbosacral paravertebral myositis
have been met since October 29, 2008. 38 U.S.C.A. §§ 1155,
5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.55, 4.59,
4.71a, Diagnostic Codes 5235-5243 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
1. Notify
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
As the notice requirements of the VCAA apply to all five
elements of a service-connection claim, including: (1)
Veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability, notice of the evidence required to substantiate a
claim for service connection must include information that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486
(2006).
In this case, the VCAA duty to notify was satisfied prior to
the initial AOJ decision by a letter issued to the Veteran in
April 2004. The letter advised the Veteran of the criteria
for service connection and what evidence VA would attempt to
obtain. The Veteran was also notified of the types of
evidence that might be relevant to support the claims. The
duty to notify as to the claim for service connection is met.
The Veteran was also advised as to disability evaluations and
effective dates in July 2008.
In cases such as this, where service connection has been
granted and an initial disability rating and effective date
have been assigned, the typical service connection claim has
been more than substantiated, it has been proven, thereby
rendering 38 U.S.C.A. § 5103(a) notice no longer required
because the purpose that the notice is intended to serve has
been fulfilled. Dingess, supra; Dunlap v. Nicholson, 21 Vet.
App. 112 (2007). The Veteran bears the burden of
demonstrating any prejudice from defective notice with
respect to the downstream elements. Goodwin v. Peake, 22
Vet.App. 128 (2008). That burden has not been met in this
case.
2. Assist
In addition, the duty to assist the Veteran to develop the
claim is fulfilled. VA has a duty to assist the Veteran in
the development of the claim. This duty includes assisting
the Veteran in the procurement of service medical records and
pertinent treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the Veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained and the Veteran
has submitted VA treatment records. The Veteran was afforded
a VA medical examination as recently as October 2008. He was
afforded the opportunity for a hearing before a member of the
Board, however, he failed to appear for that hearing after
receiving notice to his most recent address. Significantly,
neither the Veteran nor his representative has identified,
and the record does not otherwise indicate, any additional
existing evidence that is necessary for a fair adjudication
of the claim that has not been obtained. Hence, no further
notice or assistance to the Veteran is required to fulfill
VA's duty to assist the Veteran in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
The record establishes the Veteran was afforded a meaningful
opportunity to participate in the adjudication of the claims.
See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). All
requirements of the duty to notify the Veteran and the duty
to assist the Veteran are met.
Initial Evaluation
The Veteran seeks higher initial ratings for his spine
disability.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Disabilities must be reviewed in relation to their history.
38 C.F.R. § 4.1. Other applicable, general policy
considerations are: interpreting reports of examination in
light of the whole recorded history, reconciling the various
reports into a consistent picture so that the current rating
may accurately reflect the elements of disability, 38 C.F.R.
§ 4.2; resolving any reasonable doubt regarding the degree of
disability in favor of the claimant, 38 C.F.R. § 4.3; where
there is a question as to which of two evaluations apply,
assigning a higher of the two where the disability picture
more nearly approximates the criteria for the next higher
rating, 38 C.F.R. § 4.7; and, evaluating functional
impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1
Vet. App. 589 (1991).
In cases such as this, where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern. See Francisco v. Brown, 7 Vet.
App. 55, 58 (1994). In an appeal from an initial rating, the
Board must consider the medical evidence during the entire
period since the Veteran's claim was first filed. Fenderson
v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court
held that in cases where an initially assigned disability
evaluation has been disagreed with, it was possible for a
Veteran to be awarded separate percentage evaluations for
separate periods based on the facts found during the appeal
period (staged ratings). Id. at 126. Here, the Veteran is
entitled to consideration of staged ratings as this is an
appeal from his initial rating.
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the Veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied. 38
U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
Throughout the rating period on appeal, the Veteran's spine
disability has been rated under Diagnostic Code (DC) 5237,
which rates lumbosacral or cervical strain. Disabilities of
the spine are rated under the General Rating Formula for
Diseases and Injuries of the Spine (for DC 5235 to 5243,
unless 5243 is evaluated under the Formula for Rating
Intervertebral Disc Syndrome Based on Incapacitating
Episodes). Ratings under the General Rating Formula for
Diseases and Injuries of the Spine are made with or without
symptoms such as pain (whether or not it radiates),
stiffness, or aching in the area of the spine affected by
residuals of injury or disease.
The General Rating Formula for Diseases and Injuries of the
Spine provides that a 10 percent evaluation is warranted
forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees; or, combined range
of motion of the thoracolumbar spine greater than 120 degrees
but not greater than 235 degrees; or, muscle spasm, guarding,
or localized tenderness not resulting in abnormal gait or
abnormal spinal contour; or vertebral body fracture with loss
of 50 percent or more of the height.
A 20 percent evaluation is warranted for forward flexion of
the thoracolumbar spine greater than 30 degrees but not
greater than 60 degrees, or the combined range of motion of
the thoracolumbar spine not greater than 120 degrees, or
muscle spasm or guarding severe enough to result in an
abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis, or abnormal kyphosis.
A 40 percent evaluation is warranted for forward flexion of
the thoracolumbar spine 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine. A 50 percent
evaluation is warranted for unfavorable ankylosis of the
entire thoracolumbar spine. A 100 percent evaluation is
warranted for unfavorable ankylosis of the entire spine. 38
C.F.R. § 4.71a, DC 5235 to 5243.
Any associated objective neurologic abnormalities, including,
but not limited to, bowel or bladder impairment, are to be
rated separately. 38 C.F.R. § 4.71a, DC 5235 to 5243, Note
(1).
For VA compensation purposes, normal forward flexion of the
thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30
degrees, left and right lateral flexion are 0 to 30 degrees,
and left and right lateral rotation are 0 to 30 degrees. 38
C.F.R. § 4.71a, DC 5235 to 5243, Note (2).
Finally, under 38 C.F.R. § 4.40, functional loss may be due
to pain, supported by adequate pathology and evidenced by the
visible behavior of the claimant on motion. Disability of
the musculoskeletal system is the inability to perform normal
working movement with normal excursion, strength, speed,
coordination, and endurance, and that weakness is as
important as limitation of motion, and that a part that
becomes disabled on use must be regarded as seriously
disabled. A little used part of the musculoskeletal system
may be expected to show evidence of disuse, through atrophy,
for example. 38 C.F.R. § 4.40.
The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate
inquiry into whether there is limitation of motion, weakness,
excess fatigability, incoordination, and impaired ability to
execute skilled movements smoothly, and pain on movement,
swelling, deformity, or atrophy of disuse. Instability of
station, disturbance of locomotion, interference with
sitting, standing, and weight-bearing are also related
considerations. The Court has held that diagnostic codes
predicated on limitation of motion require consideration of a
higher rating based on functional loss due to pain on use or
due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v.
Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App.
202, 206 (1995). The Board has considered the functional
loss due to pain when assigning the Veteran's evaluations, as
discussed below.
The Veteran has attended several VA examinations for his
spine. The first was in May 2004. He complained of pain in
the mid-lumbosacral area without radiation, which was
moderate in intensity. He experienced moderate flare-ups
four times per day which lasted 10 or 15 minutes, during
which time he was unable to lift or bend. The Veteran denied
any associated symptoms such as numbness, bladder trouble, or
weakness of the lower extremities. He did not need help with
his activities of daily living. Extremities were symmetric
with no muscle atrophy. Range of motion was as follows:
forward flexion to 90 degrees, extension to 30 degrees, left
and right lateral flexion to 30 degrees, left and right
lateral rotation to 45 degrees for a combined 240 degrees
range of motion. There was no pain on motion or additional
limitation due to pain or fatigue and no gait abnormalities.
The examiner noted straightening of the lumbar spine, some
spasms, guarding, and tenderness. There was no ankylosis.
Neurological examination was normal. Lumbosacral
paravertebral myositis was diagnosed.
The Veteran's next examination was in August 2005. He
complained of increasing pain and stiffness with sitting.
Pain occurred several times per day and lasted for a half an
hour. When pain occurred it was 8 out of 10. The Veteran
denied any associated symptoms such as numbness, bladder
trouble, or weakness of the lower extremities. He did not
need help with his activities of daily living. Extremities
were symmetric with no muscle atrophy. Range of motion was
as follows: forward flexion to 65 degrees with pain,
extension to 17 degrees with pain, left and right lateral
flexion to 30 degrees, left and right lateral rotation to 45
degrees. The examiner noted spasms and tenderness. There
was no guarding, no ankylosis, and no gait abnormalities.
Neurological examination was normal. Diagnostic tests were
unremarkable, with no evidence of bulging disc or narrowing
of the foramina. Lumbar myositis was diagnosed.
The Veteran's most recent examination was in October 2008.
He complained of pain precipitated by twisting his back or
prolonged standing or walking. He did not need help with his
activities of daily living. Extremities were symmetric with
no muscle atrophy. Range of motion was as follows: forward
flexion to 40 degrees with pain, extension to 15 degrees,
left and right lateral flexion to 15 degrees with pain, left
and right lateral rotation to 15 degrees with pain. There
was no additional limitation with repetitive motion.
Neurological examination was normal. Diagnostic tests were
normal. Chronic low back strain was diagnosed.
From the beginning of the appeals period to October 29, 2008,
the Veteran meets the criteria for a 10 percent rating, but
no higher. His range of motion reported on the May 2004
examination does not justify a 10 percent evaluation, though
the presence of muscle spasm, guarding, and tenderness
without gait abnormalities warrants a 10 percent rating.
Forward flexion at the August 2005 examination meets the
criteria for a 10 percent evaluation, but does not meet the
criteria for the next highest evaluation of 20 percent. The
findings on both examinations fail to show any gait
abnormalities or abnormal spine contour, which would merit
the next highest evaluation of 20 percent.
After October 29, 2008, the Veteran disability meets the
criteria for a 40 percent rating, but no higher. Range of
motion at the October 2008 examination showed forward flexion
to only 15 degrees with pain. There was no evidence of
ankylosis, which would merit the next highest evaluation of
50 percent.
All neurological tests performed on the Veteran were normal.
These findings rule out the possibility of a higher rating or
the assignment of separate evaluations for neurologic
abnormalities.
The preponderance of the evidence is against more favorable
ratings. As the evidence is not in equipoise, the provisions
of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not
applicable to warrant a more favorable result. Therefore,
the Veteran is granted an increased evaluation of 40 percent,
effective October 29, 2008, but no higher and no earlier.
ORDER
Entitlement to an evaluation in excess of 10 percent for the
lumbosacral paravertebral myositis prior to October 29, 2008,
is denied.
From October 29, 2008, forward, entitlement to a 40 percent
evaluation for lumbosacral paravertebral myositis is granted,
subject to governing criteria applicable to the payment of
monetary benefits.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs